The Advisory Committee opined back in 2009 that it was not permissible for a judge to approve a lawyer who may appear before the judge as a “friend” on a social networking site such as Facebook. Nearly three years later, another judge asked “but what about LinkedIn?” Specifically, the judge inquired:

Whether a judge may add lawyers who may appear before the judge as “connections” on the professional networking site, Linked In, or permit such lawyers to add the judge as their “connection” on that site?

ANSWER: No.

The Inquiring Judge argued that there should be a distinction between Facebook, “where family and other personal relationships are fostered,” and LinkedIn, which the judge said was “for the purpose of conducting professional networking.” The Inquiring Judge submitted that unlike Facebook, “a judge’s connection on LinkedIn with lawyers who may appear before the judge does not reasonably convey the impression to the public that a personal relationship of any kind necessarily exists between them.”

The committee disagreed, stating that Florida Judicial Canon 2B prohibits a judge from conveying or permitting others to convey the impression that they are in a special position t o influence the judge. The committee stated that, as it had found with Facebook in 2009, LinkedIn’s processes for selecting “connections,” and the fact that a judge’s list of connections are visible to others who the judge has approved, convey that impression and therefore violate Canon 2B.

The committee also observed that in California, a judge may accept a lawyer as a Facebook friend or LinkedIn connection if that lawyer “may” appear before the judge, but not if the lawyer actually has a case pending before the judge. The committee deemed that approach to be too difficult to administer, as it “contemplates a judge constantly approving, deleting, and reapproving lawyers as ‘friends’ or ‘connections’ as their cases are assigned to, and thereafter concluded or removed from, a judge.”

I receive this question frequently during presentations I deliver on ethics in social media and the law. Typically, the inquiry comes from who attorneys who receive “invitations to connect” on LinkedIn from judges. I generally respond that judges would be prohibited from making these connections based on the prior advisory opinion deeming Facebook “friendships” a violation of Judicial Cannon 2B, although it was not directly expressed in the prior ruling. While these advisory opinions do not impose a responsibility on the attorney to refuse the connection, this decision confirms the proper course of action would be to ignore the invitation. The analysis above was originally published on Law.com. Law.com cited the Legal Profession blog in its original article.

Earlier this year, the JAPCA Ethics Alert Blog reported on San Diego Bar Opinion 2011-2 (May 24, 2011) addressing a hypothetical involving a lawyer who represents former employees in an employment lawsuit and sends “friend” requests on social media websites to higher level employees of the opposing party/employer identified by the client as being disgruntled. Here’s a summary of the JAPCA Ethics Alert and San Diego Bar Opinion:

An attorney representing a former employee against his former company in a wrongful discharge action sends a “friend” request to two high-ranking employees with the client’s former company whom the client had identified as being dissatisfied with the employer and therefore likely to make disparaging comments on their social media pages. The attorney intended to use information obtained from the social media websites to advance his client’s interests in the litigation. The request provided the name of the attorney but did not reveal the reason for the request. The opinion focused on whether the friend requests violated California Bar Rules prohibiting contact with represented parties and prohibiting a lawyer from engaging in deceitful conduct.

Even though the friend requests makes no reference to anything other than the sender’s name, the request was found to relate to the “subject matter of the representation” since the communication was motivated by a search for information about the subject matter of the representation. The opinion rejected the argument that sending a friend request to a represented party was no different from accessing an opposing party’s public website since the only reason for the friend request is to get past the restricted access on the social media page in order to gather information from the represented employee.

The friend request violated California Bar Rules prohibiting contact with represented parties and prohibiting a lawyer from engaging in deceitful conduct. According to the opinion, a lawyer seeking to obtain information from a represented party on restricted social media websites must either: (1) obtain the consent of the represented party’s attorney and fully disclose his or her affiliation and the purpose of the friend request; or (2) seek the information through discovery.

The JAPCA Ethics Alert notes that the California Rule in question is the equivalent of Florida Bar Rule is 4-4.2. While other state’s Bar Ethics Opinions are not binding and are for prepared for guidance only, attorneys should be mindful of how a similar situation would be analyzed under the rules of their local jurisdiction. You can read more posts from the JAPCA Ethics Alert here.

The Florida Bar acknowledges that attorneys and law firms are using Facebook, Twitter, and LinkedIn for both personal use and professional networking. Most importantly, the Bar recognizes that social media pages for individual lawyers that are used solely for social purposes, such as maintaining social contact with family and close friends, are not subject to lawyer advertising rules. The complete set of guidelines are available on the Florida Bar website, and the critical portions of these guidelines are summarized below:

Pages appearing on networking sites that are used to promote the lawyer or law firm’s practice are subject to the lawyer advertising rules. These pages must therefore comply with all of the general regulations set forth in Rule 4-7.2. Regulations include prohibitions against any misleading information, which includes references to past results, promises of results, and testimonials, and prohibitions against statements characterizing the quality of legal services.

Invitations sent directly from a social media site via instant messaging to a third party to view or link to the lawyer’s page on an unsolicited basis are solicitations in violation of Rule 4-7.4(a), unless the recipient is the lawyer’s current client, former client, relative, or is another lawyer. Any invitations to view the page sent via e-mail must comply with the direct e-mail rules if they are sent to persons who are not current clients, former clients, relatives, other lawyers, or persons who have requested information from the lawyer.

Although lawyers are responsible for all content that the lawyers post on their own pages, a lawyer is not responsible for information posted on the lawyer’s page by a third party, unless the lawyer prompts the third party to post the information or the lawyer uses the third party to circumvent the lawyer advertising rules. If a third party posts information on the lawyer’s page about the lawyer’s services that does not comply with the lawyer advertising rules, the lawyer must remove the information from the lawyer’s page. If the lawyer becomes aware that a third party has posted information about the lawyer’s services on a page not controlled by the lawyer that does not comply with the lawyer advertising rules, the lawyer should ask the third party to remove the non-complying information. In such a situation, however, the lawyer is not responsible if the third party does not comply with the lawyer’s request.

Lawyers who post information to Twitter whose postings are generally accessible are subject to the lawyer advertising regulations set forth in Rule 4-7.2 as above. A lawyer may post information via Twitter and may restrict access to the posts to the lawyer’s followers, who are persons who have specifically signed up to receive posts from that lawyer. If access to a lawyer’s Twitter postings is restricted to the followers of the particular lawyer, the information posted there is information at the request of a prospective client and is not subject to the lawyer advertising rules under Rule 4-7.1(h). The information remains subject to the general misconduct rule, which prohibits any conduct involving fraud, deceit, dishonesty or misrepresentation under Rules 4-7.1(i) and 4-8.4(c). Any communications that a lawyer makes on an unsolicited basis to prospective clients to obtain “followers” is subject to the lawyer advertising rules, as with any other social media as noted above.

A page on a networking site is sufficiently similar to a website of a lawyer or law firm that pages on networking sites are not required to be filed with The Florida Bar for review.

Please share this information with any lawyer, law firm human resources director, and marketing representative for any law practice in Florida. These guidelines clarify common attorney advertising questions relating to personal and professional social media use in Florida, and should be included as a supplement to any law firm social media policy. Additional information is available in the Handbook on Lawyer Advertising and Solicitation on the Florida Bar website. Thank you to Renee Thompson at Mateer Harbert for bringing these guidelines to my attention!

Social media plays an important role in marketing for attorneys. Social networks such as Facebook, professional networks such as LinkedIn, and blogging sites such as Twitter provide attorneys with easily accessible avenues to publish, share, and comment on the law, politics, and everyday life. As more attorneys turn to social media for their personal and professional use, law firm social media policies are becoming essential.

All firms should develop a social media policy that encourages the use of these new and emerging tools in innovative ways. Get input from all stakeholders and participants by establishing a committee of your rainmaking lawyers, senior managers, IT experts, marketers, and members of Gen Y to devise your specific firm strategy.

For each new technology, draft general guidelines on what information lawyers may share online, including considerations on how the communication reflects upon you and your colleagues, how faithfully it represents your clients’ interests, and the implications of making this information public.

Your law firm brand is important. So involve your marketing staff throughout the process, because it is its responsibility to promote, protect and enhance the integrity of your brand.

Seasoned bloggers should be trusted to click and submit. Junior contributors should have their work read by one other editor before it goes live. Any more filters than that and your firm’s communications may lag.

On Tuesday, I summarized The Social Media Guide for Lawyers on this blog. The ABA Law Practice Magazine featured the Guide as a useful social media resource. I co-authored the Guide with members of the 2010-11 Meritas Leadership Institute Class. The Guide addresses significant challenges with social media, including ethical issues, time management/productivity, and provides sample firm social media policies that are in-line with nearly all of the ABA’s suggested guidelines discussed in the article linked above.

As a member of the 2010-11 Meritas Leadership Institute class, I had the pleasure of working with a select group of talented attorneys from across the world to investigate and analyze the role of social media in the practice of law. As part of our year long investigation, we prepared The Social Media Guide for Lawyers. The Guide addresses significant challenges with social media, including ethical issues, time management/productivity, and offers sample firm social media policies that address the following subjects:

unintended attorney-client relationships

disclosure of sensitive client/firm information

alienation of a client/potential client

damage to professional image

A complimentary copy of the Guide can be found here. The Guide includes both a permissive and restrictive social media policy that can be adopted law firms and modified to meet their specific needs. These guidelines included with the Guide are intended to augment and enhance your existing firm policies, including the firm’s technology and confidentiality policies.

In the most recent addition of Law Practice Magazine, the American Bar Association (“ABA”) suggests certain guidelines for creating a law firm social media policy. I will summarize the ABA’s suggested guidelines on this blog on Thursday.

Facebook, Twitter, and LinkedIn are among the top social media websites that have transformed electronic communications and social interactions culturally. Inevitably, these communication techniques have also affected litigation practice and are brimming with ethical traps. In 2009, the ABA warned of the following ethical pitfalls to avoid – and its advice still rings true today:

* Avoid using third parties to contact counsel, parties, or witnesses without expressly disclosing that the communication is on behalf of the attorney, law firm, or client.

* Never use deception or misrepresentation in communications—including use of aliases and screen names that do not clearly identify you.

* Always identify yourself and the purpose of your communications.

Contacting unrepresented non-parties in litigation through a third party may violate ethical rules prohibiting misconduct ion through deception. For example, Florida Rule of Professional Conduct 4-8.4 (c) prohibits attorneys from “engag[ing] in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Rule 4-5.3 extends the prohibition against deception to non-lawyer assistants. Lawyers should be mindful of how existing rules of professional conduct and ethics applies to modern day technology and social media by continuing to review their applicable local rules.

Attorneys and law firms should balance the rewards and risks of using social media to promote their practice. Many attorneys are hesistant to dive into online marketing through social media because they are unaware of the benefits social media provides:

Social media is an important marketing and business development tool. Attorneys and law firms are beginning to recognize that social media websites, like blogs, are a valuable form of branding and relationship building. Social media is an effective means of communicating your firm’s brand to today’s online marketplace.

Social media adds value. Your brand is critical to the success of your firm. Your attorneys serve as a reflection of your firm’s brand in the courtroom, boardroom, and through their online activities. Responsible and effective social media activities add value to the firm’s business and helps generate new clients by:

building a sense of community – potential clients hire firms with attorneys they know, like, and trust; and

helping promote the firm’s values by becoming an extension of the firm’s brand.

Like any successful marketing campagin, social media will not generate clients over time. Your law firm should brainstorm your short term and long term online marketing goals, create a business development plan, and consult internal and external marketing professionals for advice. Over the coming months, this blog can also serve as a resource to identify how your firm can use social media professioanly, effectively, and ethically.

Attorneys have long recognized the value of networking. Show me a lawyer who invests time in creating new relationships, gets involved in his or her community, and actively seeks out potential clients, and I’ll show you an attorney who will be spending more time on the golf course in five years than with their head buried in corpus juris secundum. Yet, most lawyers are hesitant to engage in the recent explosion of social media and online networking because they do not believe the rewards outweigh the risks.

Trusted legal authorities such as Law.com recognize social media’s potential in the legal industry. “Facebook, Twitter, LinkedIn, Martindale Hubbell Connected, and LegalOnRamp are just a few of the powerful social media technologies that can help your law firm or company develop and protect its brand and intellectual property; provide client service and deflect complaints; showcase and educate your professionals — and more.” In the past, attorney networking traditionally occurred at bar association events, professional networking groups, and on the golf course. Today, these traditional notions of networking are enhanced by an attorney’s ability to reach a broader audience through emerging social media technologies. Online networking sites provide attorneys with the ability to strengthen professional relationships through more frequent contact, connect with a wider range of potential referral sources, and afford attorneys the opportunity to educate the public and empower clients in their trusted area of law.

Notwithstanding these benefits, attorneys often cite a cornucopia of concerns for avoiding social media marketing. Some are afraid of committing ethical violations. Others find social media undignified for lawyers. And most attorneys are simply too busy to “tweet.” In the coming months, this blog will highlight the unique benefits of social media for attorneys and address common social media concerns in an attempt to alleviate misconceptions about attorney’s use of social media.

Thursday’s post will address one of the most common concerns: time management and the misconception that social media is too time consuming for a busy lawyer. Do you have a concern you would like addressed in this blog? Leave a comment. Better yet, tweet about it!

Social media is taking the business and legal community by storm. As of September 2010, Internet users spend more time on Facebook than any other Internet website, including google. Social media platforms such as Facebook, Twitter, and LinkedIn are prevalent in boardrooms across country, creating unique marketing opportunities by connecting attorneys with colleagues and potential clients from around the world. These interactive sites are also penetrating our courtrooms, providing nearly unrestricted access to online evidence, while presenting unique issues of first impression that require careful attention by the legal and business communities alike.

The Social Media Law & Order blog will survey the effect of social media on the law and provide insightful commentary on this rapidly changing landscape. The blog will serve as a resource for attorneys on how social media affects their practice, and will offer practical advice on how attorneys can use social media to professionally develop their practice while abiding by the highest standards of professionalism and ethics. It will also serve as a resource to the business community by providing insight on how social media is expanding business in today’s Internet driven marketplace.

The Social Media Law & Order blog is designed to become your trusted source for insight onsocial media’s effect on the law and provide order on how this revolutionary platform can be used effectively in the legal and business community.